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Proposals for Settlement in Florida: Are Extensions of Time to Accept Allowed?

In Ochoa v. Koppel, No. 2d 14-1866 (Fla. 2d DCA May 20, 2016), Florida’s Second District Court of Appeal held that the mere filing of a motion to enlarge the time to respond to a proposal for settlement will not toll the time for accepting the proposal until the party seeking the extension can obtain a ruling from a trial court in regard to the extension request. In rendering its decision, the Second District certified direct conflict with the decision by Florida’s Fifth District Court of Appeal almost 20 years earlier in Goldy v. Corbett Cranes Services, Inc., 692 So. 2d 225 (Fla. 5th DCA 1997). The resolution of this issue ultimately will rest with the Florida Supreme Court because that court’s discretionary jurisdiction includes review of district court of appeal decisions that directly conflict with one another. Art. V, §3(b)(4), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(iv).

Laura Ochoa suffered injuries as a result of an accident involving a car driven by Donna Koppel. On September 3, 2013, Ochoa served Koppel with a proposal for settlement in the amount of $100,000 under Section 768.79 of the Florida Statutes and Rule 1.442 of the Florida Rules of Civil Procedure. On October 2, 2013, only one day before expiration of the 30 day period to accept the proposal for settlement, Koppel filed a motion seeking to enlarge the time to respond. Koppel argued in her motion that she needed more time to evaluate the proposal in light of a new medical report relating to Ochoa’s injuries and the fact that she had not yet had an opportunity to depose Ochoa. The Court heard the motion for more time on December 2, 2013, but did not issue a ruling. Koppel served a notice purporting to accept the proposal for settlement on December 3, 2013. The trial court denied the requested enlargement of time on December 5, 2013.

The trial court then found that the time period for accepting the proposal for settlement was tolled automatically by the filing of Koppel’s motion for enlargement of time. The trial court refused to strike Koppel’s acceptance of the proposal for settlement and ultimately granted the motion to enforce the proposal for settlement made by Ochoa. Timely acceptance of the proposal, which the trial court found, limited Ochoa’s recovery to the amount of the proposal ($100,000).

Florida’s Second District Court of Appeal reversed and held that Koppel’s purported acceptance of the proposal for settlement was untimely because it occurred more than 30 days after Ochoa served it. The Second District reasoned that Rule 1.442 established a hard 30 day deadline to accept a proposal for settlement; the failure to accept within the 30 days operated as a rejection of the proposal. The Second District further reasoned that neither Rule 1.442, the proposal for settlement rule, nor Rule 1.090, the enlargement of time rule, included language allowing the mere filing of a motion for an extension of time to toll the period for accepting a proposal for settlement. The Second District rejected the notion that a party could grant itself a de facto enlargement of time, by waiting to file a motion for enlargement of time until the last day before expiration of the period to accept the proposal. Instead, the Second District noted that the plain language of Rule 1.090 required a trial court to determine whether a party had shown cause for a requested enlargement of time. Thus, Koppel’s failure to accept the proposal for settlement within 30 days after its service, the deadline established by Rule 1.442, meant that Koppel necessarily had rejected the proposal for settlement, making it unenforceable, notwithstanding her filing of a motion for enlargement of time.

The decision in this case is important for its specific application to proposals for settlement and for its broader impact on extension requests in general. When faced with a proposal for settlement filed early in a case, the party receiving the proposal should take immediate action to file a motion for extension of time to accept the proposal for settlement, if the party can show cause to support the enlargement of time.[1] Merely filing a motion for extension of time is insufficient, if the case is pending in a circuit court for which Florida’s Second District Court of Appeal has appellate jurisdiction, to obtain an enlargement of time.

Of equal significance, the Second District’s reading of Rule 1.090, the enlargement of time rule, has application to a myriad of other extension requests, including enlargements of time to respond to discovery requests or pleadings. Absent agreement from the opposing party allowing the extension of time, the best practice will involve filing a motion for an enlargement of time and having the motion heard well before expiration of the deadline to accept the proposal for settlement, respond to a discovery request, or file a pleading, if the opposing party will not consent to the extension. A party who waits until the “last minute” and then attempts to grant itself an enlargement of time may find that its request is denied and that a non-extendable deadline to take some action, like accept a proposal for settlement, file a response to a pleading, or respond to a discovery request, has passed, potentially leading to dire consequences, like default, waiver of discovery objections, or damages that a party could have limited by accepting a proposal for settlement.

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